Citation Nr: 0939188
Decision Date: 10/15/09 Archive Date: 10/28/09
DOCKET NO. 06-23 960 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the
Republic of the Philippines
THE ISSUE
Whether new and material evidence has been received to reopen
a claim for entitlement to service connection for the cause
of the Veteran's death.
ATTORNEY FOR THE BOARD
C. dR. Dale, Associate Counsel
INTRODUCTION
The Veteran had active military service from October 1943 to
August 1945. The Veteran died on June [redacted], 1997. The
appellant is the Veteran's surviving spouse.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a February 2006 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Manila, Philippines.
Please note this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
FINDINGS OF FACT
1. A July 2002 rating decision that denied service
connection for the cause of the Veteran's death was not
appealed.
2. Evidence received since the July 2002 rating decision
does not raise a reasonable possibility of substantiating the
claim of service connection for the cause of the Veteran's
death.
CONCLUSIONS OF LAW
1. The July 2002 RO decision that denied service connection
for the cause of the Veteran's death is final. 38 U.S.C.A. §
7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2009).
2. New and material evidence has not been received
sufficient to reopen the claim of service connection for the
cause of the Veteran's death. 38 U.S.C.A. § 5108 (West
2002); 38 C.F.R. § 3.156 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
In a decision dated in July 2002, the RO denied the
appellant's claim for service connection for the cause of the
Veteran's death. The appellant did not timely appeal this
decision. A finally adjudicated claim is an application
which has been allowed or disallowed by the agency of
original jurisdiction, the action having become final by the
expiration of one year after the date of notice of an award
or disallowance, or by denial on appellate review, whichever
is the earlier. See 38 U.S.C.A. § 7105; 38 C.F.R. §§
3.160(d), 20.302, 20.1103. Thus, the July 2002 decision
became final because the appellant did not file a timely
appeal.
The claim of entitlement to service connection for the cause
of the Veteran's death may be reopened if new and material
evidence is submitted. Manio v. Derwinski, 1 Vet. App. 140
(1991). The appellant filed this application to reopen her
claim in August 2005. Under the applicable provisions, new
evidence means existing evidence not previously submitted to
agency decision makers. Material evidence means existing
evidence that, by itself or when considered with the previous
evidence of record, relates to an unestablished fact
necessary to substantiate the claim. New and material
evidence can be neither cumulative nor redundant of the
evidence of record at the time of the last prior final denial
of the claim sought to be reopened, and must raise a
reasonable possibility of substantiating the claim. 38
C.F.R. § 3.156(a). In determining whether evidence is new
and material, the credibility of the new evidence is
presumed. Justus v. Principi, 3 Vet. App. 510 (1992).
The evidence before VA at the time of the prior final
decision consisted of the Veteran's service treatment
records, a medical certificate dated in January 2000, and a
death certificate. The January 2000 medical certificate
stated that the Veteran had the following debilitating
diseases: gunshot wound at the back, heart disease,
hypertension, and cerebro vascular accident. The death
certificate confirmed that the Veteran died in June 1997.
Immediate cause of death was listed as a cerebrovascular
accident. In denying the appellant's service connection
claim in July 2002, the RO noted that there was no evidence
of a relationship between the Veteran's service-connected
gunshot wound and his death.
Evidence received since the July 2002 decision for the claim
of service connection for the cause of the Veteran's death
includes a September 2005 Certificate of Confinement, which
showed that the Veteran was confined for four days in April
1997 for coronary artery disease and typhoid fever. Also
included was additional information regarding the Veteran's
dates of service.
The Board concludes that, while new, the additional evidence
received since the last final prior denial of service
connection for the cause of the Veteran's death in July 2002
does not raise a reasonable possibility of substantiating the
claim. The claim for service connection, therefore, cannot
be reopened on the basis of such additional evidence. 38
C.F.R. § 3.156(a).
Additionally, the claim cannot be reopened on the basis of
the statements submitted by the appellant indicating the
Veteran's service caused his death. As a lay person, she is
without ostensible medical expertise and is not competent to
provide a diagnosis or opine on a matter requiring knowledge
of medical principles. Bostain v. West, 11 Vet. App. 124
(1998); Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Routen
v. Brown, 10 Vet. App. 183 (1997) (layperson is generally not
capable of opining on matters requiring medical knowledge).
Although the appellant has submitted new evidence that was
not before the RO in July 2002, such evidence is not material
to the claim and does not warrant reopening of the previously
denied claim. Of significance to the Board is the lack of
competent medical evidence associating the cause of the
Veteran's death to service or his service-connected
disability. Thus, the claim for service connection for the
cause of the Veteran's death is not reopened, and the benefit
remains denied.
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Upon receipt
of a complete or substantially complete application for
benefits, VA is required to notify the claimant and his
representative of any information and medical or lay evidence
that is necessary to substantiate the claim. 38 U.S.C.A. §
5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2009); Quartuccio
v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice
must inform the claimant of any information and evidence not
of record (1) that is necessary to substantiate the claim;
(2) that VA will seek to provide; and (3) that the claimant
is expected to provide. 38 C.F.R. § 3.159(b)(1), as amended
by 73 Fed. Reg. 23,353-56 (Apr. 30, 2008). Notice which
informs the Veteran of how VA determines disability ratings
and effective dates should also be provided. See
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA
notice should be provided to the claimant before the initial
unfavorable agency of original jurisdiction (AOJ) decision on
a claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21
(2004).
During the pendency of the appeal the Court issued a decision
in which it held, in part, that VA's duty to notify a
claimant seeking to reopen a claim included advising the
claimant of the evidence and information necessary to reopen
the claim and of the evidence and information necessary to
establish entitlement to the underlying claim for the benefit
sought by the claimant. Kent v. Nicholson, 20 Vet. App. 1
(2006). The Court further held that VA must, in the context
of a claim to reopen, look at the bases for the denial in the
prior decision and respond with a notice letter that
describes what evidence would be necessary to substantiate
the element or elements required to establish service
connection that were found insufficient in the previous
denial. Id. at 9-10.
In letters dated in September 2005 and September 2007, the
appellant was advised of the information and evidence
necessary to reopen her claim for service connection, and of
the evidence needed to substantiate the underlying claim for
service connection. She was also advised of the evidence
that VA would seek to provide; and of the information and
evidence that she was expected to provide. In April 2009 she
was informed him of how VA establishes disability ratings and
effective dates. Dingess/Hartman, 19 Vet. App. 473. The
Board thus finds that the appellant has been provided
adequate notice in accordance with 38 U.S.C.A §§ 5103, 5103A
with regard to her claim for service connection.
Regarding the duty to assist, STRs and VA treatment records
have been obtained and associated with the claims file. In a
letter dated in April 2009 the Board requested additional
information regarding the appellant's appeal. No reply has
been received. The Board is satisfied that VA has
sufficiently discharged its duty in this matter. Smith v.
Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed.
Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001);
see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).
ORDER
New and material evidence not having been received, the
application to reopen a claim for service connection for the
cause of the Veteran's death is denied.
____________________________________________
L. M. BARNARD
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs